tHE .l'ATCHEZ.

·169

THE NATCHEZ. NATCHEZ & N. O. PACKET CO. v. MANNllEIM INS. Co. SAME V. LOUISVILLE UNDERWRITERS. SAME V. ST. PAUL, FIRE & MARINE INS. CO. SAME V. DAKOTA FIRE & MARINE INS. CO.

(Dtstrict Oourt, E. D. Louisiana. April 25, 1890.)
1.

:MARINB INSURANCB-Loss-PERILS OF RIVER.

A river steam-boat ran upon a bar, and, upon being taken ofl, it was found that her seams had opened, and that she was leaking badly. To keep her from sinking, she was beached upon another bar. While there the river rose rapidly, and destroyed the vessel. HeW, that she was lost by a peril of the river. The night being dark when the vessel ran upon the first bar, Rnd the act of running her upon the seCQnd bar having been done in good faith, to keep her troin sinking, the facts do not show negligence on the part of the master. The fact that help could have been obtained after 'the vessel was grOunded the second tUne, and before she was destroyed, does not make the failure to procure such help negligence, when it is not shown that the help would have been efl'ectu[l,l, or that tlie master knew of its existence. .

ll.

SAME'-NEGUGENCE.

, 8.

SA:ME.

,

Where 'insurers are notified that a wrecked vessel is abandoned to them, and the ownerll and master believe that the insurers will take posseliision of her, the fact that the master and owners take no further steps to save the vessel does not the .insurers from liability on the policy of insurance.
SA:MB......PREMIUM NOTE.

5.

The fact that part of the insurance premium has been' paid by a note which' 'is overdue and unpaid at the time of the loss does not avoid the policy, but the amonnt due on the note should be deducted from the amount of the insurance.

. .

In Admiralty. O. B.Sansom, for libelant. J. R. BeckuJith, for defendants.
BILLINGS, J. These suits were by consent tried together. Theyar.:l brought upon policies of insurance upon the steam-boat Natchez, the libelant contending that the steam-boat became a total loss under the policies; and the real question between the parties seems to be whether her destruction was under such circumstances as to make her a loss under the policies. The answers in all the cases are the Same, and besides the mattei'S set up with reference to the jurisdiction of this court over the causes, and with reference to the service of respondents through tnf-}, statutory agent, present the following matters upon the.merits:First. That the premiums were not paid in cash, but by a promissory notet which is unpaid and overdue; and that the insurance was, with certai;n exceptions, only against the unavoidable dangers of the river, and against fire. Second. That the vessel insured was not seaworthy, in that it was not furnished with sufficieht tackle and appliances, or with proper master, officers, and crew; and was unskillfully arid negligently navigated, and through unskillfulness and negligence was run upon ·a sand-bar in the Mississippi river, from which she was soon by being backed off, and' was thereafter, through negligence and unskillfulness, permitted to fill with water, and voluntarily beached or run, agroundj that thll vessel

,170

FEDERAL, REPORTER,

vol. 42.

was not equipped with pumps and machinery, and, through want of ordinary care and skill those appliances which she had were made ineffectual to keep her afloat; that after the vessel was run ashore her deavoided; that a,dditional pumps could have struction could produced, but not; that after the vessel was grounded proper care was not used to save her, especially the machinerYj that proper proofs ofloss have not been presented; that there never was any abandonment. There is also a denial of the value as alleged j viz., $100,000; and of the insurable interest of the libelants. It thus appears that, with the exception of the execution of the policy.ofinsurance, all',of the materi# facts necessary. to enable a party to recover upon the policy are put at issue by denial oraffirmativ6 averments., . "', , necessary to be considered are the following: Aftbr midnight, $ndJ>efore dawn,on'the morning of January 1, 1889, the Natchez, the night being, tl.S some witnesses call, "dark,"others "misty," and witness ran upon a bar. By and the aldol the steam-tugSunflower,·she was gotten off.. ' She was taken 'om"to LakeProvidenhe, and it was found that her seams had been opened; that she was leaking badly, arid was sinking" apd, in danger of tbelle'ep water at Lak.e Providence; and, under the directi'onsofthemaster, Capt. Bowling '.1\ Leathers; the pilot took her and beached her upon a bar, which, though there is some testimony as to its, character for permanence. was, by them, considered a. suitable bar . fortllis:purpose.· The master telegraphed to T. P. Leathers, who published the'fact of her disaster in the papers. This brought Capt.Harpham and Mr. Bailey in the afternoon of the 1st to Capt,Leathers, who was the general manager of the owners of the Natchez.· Capt. T. P. Leathers read the dispatch to both of therp, and said to Capt. Harpham, in effect, that he abandoned her to the underwriters. He believed Capt.· Harpham authori;ty to receive: s.u,ch abandonment. , According to Capt,1I4r.phapl'B testimony, he, hadn() such but according to ¥t. Bailey's testilUony, he (Mr. Bailey) had.' Capt. T. P. Leathers clearly believed he hl\ocl.a,bandoned.her, though, Mr. Harpham urged that it was the duty of t!;le o,fficers of the boat, todo they could to save her. ,:yeather.s ga.ve Capt; Harpham two to his son, they unCapt. I:Iarpham was to start that nigllt for the Natchez, RRd tele.grapl;:ted to son, the master, that Harpham would come and that the master must aid him. .and take cl,lstQdy ot received the telegram, al;1d subsequently the Capt.B9wling,T. letters .bY,ma.iI. discharged the crew, and waited for Capt., who" in ,consequence of a telegram from the agent of theLQuillvilleunderwrj,ters, did not go. Capt.T. P. Leathers did not had not gO:ne, and 110t in charge of the 1;>o8otu11til night. , On Saturday, the river had contiJ;l'Q.edt<)rjsElrapidly,. Natchez broke opel.1' andbecame.a complete the Nlj.tchez,eJl:qept some (fabin furniwreek.",Nothipg was saved law ture, which netted but little. .Upon these facts,

THE NATCHEZ.

171

1. The steam-boat Natchez was lost by reason of a peril of the river, not excepted, and therefore included in the indemnifying cIauseof allfour policies, viz., grounding or stranding upon a bar of the river. 1 Pars. Mar. Ins. (Ed. 1868,) pp. 546, 547, and authorities cited in 2. That the vessel was seaworthy; that her masters, officers, and crew were suitable and proper, and as to the pumps, which was the point to which the evidence and argument were specially directed, that they were adequate. Upon this point the testimony of Wilson Bloodgood, an inspector, who speaks of the Natchez as of the date of his inspection, September 27, 1888, testifies as follows: "She [the NatchezJ had a very large supply of bilge pumps, L bilge pumps means pumps used to free the hold of water.] She had two attached to tbe ·doctor' or pumping engine. [that is a regular supply pump;] the donkey pump. [that means auxiliary feed pumps;] also pump out of the hold or pumps. In addition. she had ten siphons." 3. As to want of skill and negligence in incurring and causing the grounding on the first and on the second bar. The steam-boat, it would seem, received great injury, which op<.'lled her seams and caused copious leakage by running upon the sand-bar. The night was dark, thegovernment light was out, and the objects on the shore were but dimly visible. The capacity of the master and· the pilot is unimpeached,-and they were reasonably attentive. Therefore, as matter of evidence, the running upon the first sand-bar was not attributable to want of skill- or care, but to the class o(experiences, which, though connected with navigation, belong to experiences which are termed "inevitable accidents." There is testimony pro and con as to the wisdom of running the steamboat or beaching her upon the flat bar at the foot of Stork island. The master gave the proper order to the pilot to beach her upon a suitable bar. The pilot determined in good faith, and with all the consideration which the sinking condition of the vessel allowed, to beach her upon this Stork island bar. I think a decision thus reached, even if mistaken, would justify the insured. But it is not satisfactorily shown that itwas amista:ke. . 4. The most vigorous defense is made upon the alleged negligence of the insured and their master after the beaching upon the Stork island bar, and until the complete destruction of the Natchez four or five days subsequently. There is testimony that boats furnished with pumping and working apparatus were at Vicksburg. The rule is correctly by the proctor for the defendants, that the master was bound to do 'all be could to relieve and save the insured property. But it is by no means certain that the help shown to exist was known to the master, or that, if summoned, it would have been effectual. In this connection should be considered the matter of abandonment. As it is not made reasonably certain that any effective aid could have been obtained, 1'do not think it necessary to determine whether there was or riot in law abandonment. As t(i three of the defendants, the case shows that the manager of the insured told: the agents of the insurers, one of whom had power to receive an abandonment, that the vessel was abandoned to
   

an

172

FEDERAL REPORTER,

vol. 42.

the underwriters, and believed they were going into possession of her through one of the agents; and wassufl'ered hy the insurers to continue in that belief till Friday evening, the evening before her complete physical destruction, when evidently nothing could be done to save her. I think the responsibility for no further or other efforts having been made to save vessel or machinery was upon the defendants, so far as they were represented by their agents, to such an extent as to leave them liable. It was possible for them to have taken possession. They left the manager of the plaintiffs, and through him the master, in the belief, the former that the insurers had taken, and the latter that they would take, possession, and guide the efforts to rescue. The master, under these cirqumstances, did what really seemed to him at the time to be wisest and most effective.· Upon these facts, I think the liability of the insurers continues. These facts, too, render it unnecessary to consider the question of total Ipss grounding. As to the three defendants, if the insurers, b,y. their :Own conduct, made the acts of the master their own, so far as r:elates to. their obligation to indemnify, and if while a competent master was .thu8 left in charge of the vessel, and was doing the best he could, the vessel.be<;ame an actual total loss, there is. no need of considering questions or of con:;;tructive loss. As to all the defendants, the final Joss was physically absolute and total, and for this loss, uPlW the facts .established, the insurersl,tre liable. The evidence does not establish that any relief could ha\'e been obtained which could have prevented the total ultimate destruction. The master, Capt. Bowling testitles that he had the opinion that nothing could have done. With the vessel injured as she was by the first grounding, rising, and the boat ready to sink from her weakened, condition, H is but an unsupported conjecture that a fahave been attained if the attemp,t had been made tp ' wrecking or pumping b9ats from Vicksburg. I think, tperefore,;that the libelan,t must have j).ldgment iq each of the Jour cases. The value of the Natchez is shown ·to have been about $150,000. or $207,000. The amounts insured were as folvi?!. : .. By: the Louisville Underwriters · $ 7,000
¥I\:lJ;1heim Insurance 00. Fire and Marine Ins. Co·· :&1 Dakota Fire and Marille Ins. CO. ! ,:, J '}
I, I ; . . , , ' ,

5.000 2.500 1,500 $16.000

'"

I

Making a total insurance of

$30,OOO,the iQsurance not to $20,000. ,;ltpink, the amount ofregQvery should he.in each case the amount iusured, i. e., as claimed in the severallibels,with the following 8.fj credits: I think the amount <;If the.p.remium note in each be deducted ,upon condition that the note. tie alw, should in each case lle deducted the propqrtionate amount of tlilenet sum realized from ,the sale of the Qubin out£i,t, etc. The whole

llERON fl. THE MARCHIONESS.

173

sum was $623.69. The amount insured is, in each case, subject to a, further deduction for the amounts paid for a previous partial loss on the same risk and policies as are here involved; There will be judgment for the libelant in each case for the amount insured, less these deductions, with interest from March 23, 1889, and the matter is referred to Commissioner Loew to make the proper deductions, upon the principles above stated.

·HERON fl. THE MARCHIONESS.

(Circuit Court, N. D. FZO'1"Ida. March Ill, 18oo.)
WHARVES-LIABILITY POR WHARPAGE-MOORING FOR SAFETY.

A ship compelled by str6l!s ofweatber to moor to a wharf for safety 1s not liable to a cbarge for wharfage where the wharf is a private one, and no fixed rate of chargeis in use.

John a. Avery, for libelant. Blount &: Blount, for claimant.

In Admiralty.

On appeal from district court.

40 Fed. Rep. 330.

PARDEE, J. The steam-ship Marchioness was at anchor in the port of Pensacola, loading with timber, when a severe gale sprung up, which caused her to drag her anchor and drift towards libelant's wharf. When near the wharf, about 15 to 20 feet away, with timber along-side of her, and with two anchors out, she went aground. To prevent forging ahead, the master put out a side line and chain, and fastened both to a check., post on libelant's wharf. This line and chain remained for about an hour, when they were taken off. Soon after, the gale having abated, a tug towed the Marchiones!:l and timber to a safe anchorage. The libel is brought intbis case to recover wharfage." To maintain the libel, the Gourt must find an implied contract between the libelant and the ship t'o use the wharf, and to pay for such use. Whether such contract can be found depends upon the character, public or private, of the wharf,for what purposes it was built, the use to which it has been applied, 'the place where located, the nature of the structure, and the general circumstalwes of the case. See Dutton v. Strong, 1 Black, 24. If libelant's wharf was a public wharf, in the sense that the owner did not reserve exclusive enjoyment, but was under obligation to concede to others the privilege of landing their goods or mooring their vessels there upon the payment of a reasonable compensation as wharfage, and the said wharf was suitable for the purpose of mooring vessels, and was held out for public use, and was so used, then, as the master and owners of the Marchioness voluntarily used the said wharf to moor their p,hip, it is probable a conmay be inferred. That is to say, if the libelant, tract to pay having a suitable wharf for mooring ships, tendered it to the public, so that he may be presumed to have consented to the mooring of the Mar-